Tuesday, 2 February 2016

Bedroom Tax - what do the recent appeal decisions mean?

On Wednesday last week, the media reported on two successful appeals in the Court of Appeal against the bedroom tax (or, strictly speaking,  the 'Housing benefit size criteria restrictions for working age claimants in the social rented sector from April 2013'). The Guardian's report on it is here: http://www.theguardian.com/society/2016/jan/27/appeal-court-rules-bedroom-tax-discriminatory-in-two-cases

However, it's important not to get too excited - firstly, because the court judgement only applies to two specific situations; and secondly, because the government has been granted permission to appeal to the Supreme Court.

You can see the full text of the Court of Appeal decision here: www.bailii.org/ew/cases/EWCA/Civ/2016/29.html

What are the two cases about?


One case concerns a women ('A') whose previous partner was extremely violent towards her (and is currently serving a sentence for attempted murder). A multi-agency initiative called a sanctuary scheme enables her to live in her own home with her son. The home has three bedrooms, one of which has been converted into a secure 'panic room'. This means that under the current rules she has one room too many, and as a result her housing benefit was reduced by 14%.

The other case is about a woman ('SR') who (with her husband) cares for her severely disabled grandson. Respite carers stay overnight twice a week to enable the couple to have two nights a week when they don't have to be ready to intervene. Once the bedroom tax came in they were found to be underoccupying, and their housing benefit was reduced by 14%.

In both cases the local authorities have awarded Discretionary Housing Payments ('DHP's)to cover the shortfall so far, but there is - by definition - no guarantee that these payments will continue.

What were the legal issues the court of appeal had to consider?


The main issue in both cases was one of discrimination. The lawyers for A and SR argued that the rules discriminated against their A on the grounds of gender (because women are more likely to be victims of domestic violence) and against SR on the grounds of disability: if her grandson were not disabled there would have been no need for an extra room.

Note: this means that if you do not have a panic room, or need your extra room for overnight carers, this case does not help you.

Unfortunately, it was not enough for the lawyers to prove that women and disabled people are discriminated against: everyone, including the government, agrees that they are. What they had to show was the discrimination in these cases couldn't be justified.

The position of the DWP, who represented the government in these cases, was (basically) that the discrimination can be justified because DHPs were available to meet the shortfall.

The judges also had to consider two other court of appeal decisions about the bedroom tax

What did the court decide?


The judges decided that in neither A's nor SR's cases was the discrimination justified. In both cases they thought that the reasons that the Burnip case was successful applied to A and to SR as well.  It was not enough for the DWP to say that DHPs were available to fill the gap: there was no guarantee that the claimants would be able to keep getting them.

However...

They also gave permission for the DWP to appeal to the Supreme Court. This appeal is likely to happen soon: the judges in the A and SR appeal noted that the Supreme Court might here these cases together with the MA case, which is due to be heard in March. 

What does this all mean for claimants now?


For most people, very little. We need to wait for the Supreme Court to look at these issues. But if you have recently had a Housing Benefit decision which includes a reduction due to the bedroom tax, you should appeal, if your situation is similar to the A's, or SR's, or any of the people in the MA case, to protect your position in case the Supreme Court rules in favour of cases like yours. 


This is a list of the situations of all the claimants whose cases will be heard by the Supreme Court:

  • A female claimant who, as someone supported by a sanctuary scheme, has a  'panic room';
  • A family with a disabled child, for whom overnight carers need a bedroom;
  • A disabled adult who needs a special, hospital-type, bed, and whose partner therefore needs to sleep in a separate room;
  • A disabled adult who shares their home with another disabled person who is a student and therefore lives elsewhere some of the time, where one room in their home is used to store disability-related equipment;
  • A claimant with mental health problems, as a result of which most of the rooms in his home are filled with clutter;
  • A claimant who lives with, and cares for, his disabled daughter, and whose home (which has one 'extra' bedroom) has been extensively adapted to meet her needs;
  • A claimant with a disabled son, who spend most of his time with his mother (the claimant's ex-partner) but sometimes stays with the claimant in an otherwise spare bedroom.


In fact, it might be a good idea to appeal even if you don't fit these categories, just in case the outcome of the hearing affects you.

I've been careful to keep my opinions out of this post, and just state the facts. But let's not forget that this is about real people. Many of them save the state massive amounts of money by choosing to care for family members, with very little appreciation or financial support. If you want to earth all this in real people's stories and circumstances, I suggest you read the 'annex' of the MA case, which describes the claimants' situations in more detail.



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